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All crimes in Colorado consist of "elements." An element is a fact that the prosecutor must prove beyond a reasonable doubt for the defendant to be convicted. In this section, our Colorado criminal defense attorneys discuss the elements of each crime. Then we explain effective ways to defend against the charge, and what penalties a conviction may carry.

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But that right does not extend to minors. And California law enforcement remains committed to vigorously enforcing laws that prevent minors from using marijuana or getting involved with the marijuana business.

you knew of the marijuana's nature or character as a controlled substance.4

For purposes of this part of the law, it is not necessary that you paid or otherwise compensated the minor. It is enough that you used a minor to do any of the prohibited acts.5

Example: Alicia is in a gang that sells marijuana on the black market. The gang uses minors to peddle the drugs, because they believe the law will treat the minors more leniently. Alicia is responsible for organizing the minors and giving them the marijuana to go out and sell. By doing so, Alicia violates Health and Safety Code 11361 (as well as various other drug and gang charges), even if the minors are never paid for their work.

1.2 Selling, giving or offering a minor marijuana

California Health and Safety Code 11361 also makes it unlawful to:

sell,

furnish,

administer,

give, or

offer to furnish, administer, or give

marijuana to a minor.

To prove you guilty of this section of HS 11361, the prosecutor must prove that:

you unlawfully sold, furnished, administered or gave marijuana to a minor, or you offered to do so,

You do not have to actually hold or touch marijuana to sell, furnish, administer or give it away. It is enough if you have control over it -- or the right to control it -- either personally or through another person.7

Example: James and Janine are a young married couple in the business of selling marijuana "under the table". One of the places they sell is at the local junior high. James, however, has been previously convicted of selling drugs. So Janine is the only one that ever takes marijuana to the school or interacts with the kids. Nevertheless, because he shares the right to control the marijuana, James is liable of selling marijuana to minors.8

You do not actually need to deliver marijuana to be convicted of offering to sell it. It is enough that you intended to sell it.9

If the marijuana were being sold illegally--that is, without a valid state license for marijuana sales--it is not necessary that you intended to sell the marijuana to a minor. The intent required to make you guilty of a crime is the intent to sell a drug unlawfully. The fact that you sold or offered to sell to a minor merely goes to the matter of punishment.10

Unlike other violations of HS 11361, you are not guilty of inducing a minor to use marijuana if you reasonably and actually believed the minor was 18 or older.12

This is because it is not a criminal offense to induce an adult to use marijuana.13 Whereas, even if you believed someone was at least 18, it would be a crime to sell that person marijuana, or to use him or her to transport marijuana.

2. Penalties for violating Health and Safety Code 11361

Violation of California Health and Safety Code 11361 HS is always a felony. Unlike most other marijuana-based crimes, the sentence is served in California state prison.

If you are sentenced to felony probation, you will serve no more than one year of your sentence in county jail. But your probation will typically last between three and five years.

During that time, you will be subject to certain conditions. These may include:

drug counseling,

community service,

meetings with a parole officer, and

the requirement that you stay away from minors.

If you violate any of the conditions of your probation, the judge can order to serve out your sentence in state prison.

3. Defenses to Health and Safety Code 11361

Legal defenses to charges under Health and Safety Code 11361 HS may include:

You didn't sell, give or offer marijuana to a minor.

You didn't induce a minor to use marijuana.

You induced a minor to use marijuana, but you reasonably believed he or she was at least 18.

Example: You go to a party at the home of a friend who is a junior at a local university. He tells you all his friends are in his class. Your friend passes around a joint, but one of the girls at the party hesitates. You talk her into trying the pot. It turns out she is only 17. But because your friend is a junior, and he said she was in his class, you believed she was at least 18. If the jury decides your belief was reasonable, you have a defense to the charges.

The police engaged in entrapment.

Example: The police suspect you of selling marijuana without a license. They send a teenage informant to your home late at night, who pleads with you to sell him a dime. He says he needs it for his brother, who is suffering from cancer. So you give him a small amount of weed. The police then move in and arrest you.

For more information about California's marijuana laws, or to discuss your case confidentially with one of our criminal defense attorneys, please don't hesitate to contact us at Shouse Law Group. Our California criminal law offices are located in and around Los Angeles, Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.

Legal references:

1 California Health and Safety Code 11361(b): Every person 18 years of age or over who furnishes, administers, or gives, or offers to furnish, administer, or give, any marijuana to a minor 14 years of age or older shall be punished by imprisonment in the state prison for a period of three, four, or five years.

2 California Health and Safety Code 11361(a): Every person 18 years of age or over who hires, employs, or uses a minor in unlawfully transporting, carrying, selling, giving away, preparing for sale, or peddling any marijuana, who unlawfully sells, or offers to sell, any marijuana to a minor, or who furnishes, administers, or gives, or offers to furnish, administer, or give any marijuana to a minor under 14 years of age, or who induces a minor to use marijuana in violation of law shall be punished by imprisonment in the state prison for a period of three, five, or seven years.

8 See also People v. Garcia (1985) 166 Cal. App. 3d 1056, 212 Cal. Rptr. 822 (“The fact that another adult… may have actually handed the stuff to the minors cannot be said to constitute some sort of intervening cause that relieves the defendant of liability.”).

9 People v. Jackson (1963) 59 Cal.2d 468, 30 Cal.Rptr. 329 (“[D]elivery is not an essential element of the offense of offering to sell a narcotic.”).

See also People v. Brown (1960) 55 Cal.2d 64, 9 Cal.Rptr. 816.

10 People v. Lopez (1969) 271 Cal.App.2d 754, 77 Cal.Rptr. 59 (“Where a person intends to furnish marijuana, his ignorance of the age of his donee is not the kind of ignorance which ‘disproves any criminal intent'… nor is it the kind of accident which negates an evil design, because the act of furnishing is criminal irrespective of the age of the donee.”)

12 Same: [The defendant is not guilty of this crime if (he/she) reasonably and actually believed that <insert name of person solicited> was at least 18 years of age. The People have the burden of proving beyond a reasonable doubt that the defendant did not reasonably and actually believe that <the person in question> was at least 18 years of age. If the People have not met this burden, you must find the defendant not guilty of this crime.]

See also People v. Goldstein (1982) 130 Cal. App. 3d 1024, 182 Cal. Rptr. 207 (“The applicable principle was stated by our high court in People v. Hernandez (1964) 61 Cal. 2d 529, 530 [39 Cal.Rptr. 361, 393 P.2d 673, 8 A.L.R.3d 1092]. There the defense to a charge of statutory rape was that the accused had held ‘in good faith a reasonable belief that the prosecutrix was 18 years or more of age.'”).

13 People v. Williams (1991) 233 Cal. App. 3d 407, 284 Cal. Rptr. 454 (“The [Goldstein] court recognized a mistake of age defense because "[i]t is not a criminal offense to so 'solicit, induce, encourage, and intimidate' adult persons.' [citation] As we have seen, it is criminal to sell narcotics to persons of any age.”).

14 California Health and Safety Code 11361(a), endnote 2.

15 California Health and Safety Code 11361 (b), endnote 1.

16 California Penal Code 1203(a) PC.

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